President George W. Bush’s persistent support of the National Security Agency’s warrantless eavesdropping program — the insidious surveillance system first disclosed by the New York Times on December 16 — represents much more than a stubborn presidential effort to catch terrorists. Rather, it attempts a sea change in our system of government. Only a couple of questioners at this week’s Senate Judiciary Committee hearings on the NSA program — notably Wisconsin senator Russell Feingold, who quipped in a blog that Bush has a “pre-1776 mentality” — seemed to sense just how fundamental Bush’s gambit is. But none seems to have figured out precisely how and why Bush is acting in such an apparently reckless manner: he wants the authority to go on poaching expeditions against constitutional democracy well into the future.

It is highly likely that Bush’s monitoring program violates the privacy protections built into the Fourth Amendment, which prohibits “unreasonable searches and seizures” and requires court-authorized warrants granted on the basis of “probable cause” to justify invasive searches. But it has to be utterly clear to all but the most fawning presidential apologists that the program directly contravenes a congressional statute: the Foreign Intelligence Surveillance Act (FISA) of 1978 had already established a top-secret national-security court to grant warrants in highly sensitive investigations on US soil. Since then, FISA courts have hardly stood in the way of intelligence gathering: out of nearly 19,000 warrant applications submitted since 1978, only four — four! — were not granted at first blush. Besides, FISA itself gave intelligence agencies enormous wiggle room, allowing the government, for instance, to obtain a warrant retroactively within 72 hours of commencing a wiretap.

Despite all this, the White House continues to circumvent FISA and Congress, deploying vague assertions of inherent constitutional authority and strained appeals to a 2001 congressional resolution granting the president authority to wage war in Afghanistan. Perhaps most puzzling — on the surface at least — is the president’s refusal to ask Congress to amend FISA. Both houses of Congress, after all, are controlled by the president’s party.

So why does Bush insist on flouting the courts and Congress? The most compelling yet most disturbing explanation is this: the president is likely seeking to establish a precedent that grants him inherent constitutional authority to act on his ownin national-security matters, not only without congressional authorization, but in the face of a congressional statute — here, the 1978 FISA law — that directly depriveshim of that authority. One hint that this is really the administration's agenda came out during Monday's testimony by Attorney General Alberto R. Gonzalez, when he refused to elaborate on this extraordinary claim of presidential power. Asked whether Bush was claiming to have inherent power to conduct the eavesdropping program on his own, Gonzales ducked: “fortunately, we need not address that difficult question.” Gonzales also studiously avoided responding to any question that sought to determine what other programs, current or future, Bush might pursue on the basis of his claimed inherent executive authority.

Can Bush be beaten? This article originally appeared in the November 15, 1991 issue of the Boston Phoenix.

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